I dissent, and would reverse and remand for trial. As at the end of plaintiff’s case, at which point the trial court dismissed for insufficiency, there had been adduced sufficient evidence prima facie to raise issues for a jury to pass upon. Defendant, owner of a building, employed plaintiff to paint its exterior, supplying paint and a ladder therefor, and instructing plaintiff in the sequence to be followed in doing the work. Apparently because of a crack in the ladder, it broke while being used, and plaintiff sustained resultant injury. The trial court held against the application of section 240 of the Labor Law, which clearly and unequivocally covers the situation: “ A person employing or directing another to perform labor of any kind in the * * * painting * * * of a building * * * shall furnish * * * for the performance of such labor * * * ladders * # * which shall be so constructed " * * as to give proper protection to a person so employed or directed.” At the very least, there were issues of fact raised within the statute’s purview to require submission to triers of the fact.
Eager, J. P., and McGivebn, J., concur with Steueb, J.; Mabkewich, J., dissents in opinion in which Nunez, J., concurs.
Judgment affirmed, with $50 costs and disbursements to the respondent.